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Wikipedia is suing the NSA over mass internet surveillance

The Wikimedia Foundation, the nonprofit organization that runs Wikipedia, is filing a lawsuit against the National Security Agency (NSA) and the Department of Justice (DOJ), challenging the US government's mass surveillance programs. The nonprofit will be joined in its efforts by eight other organizations and is being represented by the American Civil Liberties Union (ACLU). "Our aim in filing this suit is to end this mass surveillance program in order to protect the rights of our users around the world," said the foundation in a blog post.

The full complaint has been published by the ACLU, with Wikimedia explaining it will focus on "upstream" surveillance — the direct interception of vast amounts of data by tapping internet infrastructure such as undersea cables. This method of surveillance has been authorized in the US under the 2008 Foreign Intelligence Surveillance Act Amendments Act (FAA) to monitor "non-US persons" only. However, as Wikimedia notes, this approach casts a wide net, capturing the data of many US citizens as well as innocent internet users overseas. Although this is not the first attempt to sue the NSA, other lawsuits have been concerned with phone-tapping rather than upstream surveillance.

"By tapping the backbone of the internet, the NSA is straining the backbone of democracy," wrote Lila Tretikov, executive director of the Wikimedia Foundation, in a blog post. "Wikipedia is founded on the freedoms of expression, inquiry, and information. By violating our users’ privacy, the NSA is threatening the intellectual freedom that is central to people’s ability to create and understand knowledge."

Wikimedia says it believes that the NSA's surveillance practices violate the US Constitution's First and Fourth Amendments — those protecting free speech and unreasonable search and seizure. It says the spy agency's practices, first revealed in documents leaked by former NSA contractor Edward Snowden, also violate Article III of the Constitution, which establishes the authority of US courts.

In an op-ed in The New York Times, Tretikov and Wikipedia founder Jimmy Wales argue that NSA surveillance not only harms US citizens, but also those working in oppressive regimes overseas. They give the example of the 2011 Arab uprisings, during which Egyptian spies boasted they were in "constant contact" with the CIA even as Wikipedia users in their country updated articles with information about the then-illegal protests.

"If that user knows the NSA is routinely combing through her contributions to Wikipedia, and possibly sharing information with her government, she will surely be less likely to add her knowledge or have that conversation, for fear of reprisal," write Wales and Tretikov. "Imagine this decision playing out in the minds of thousands of would-be contributors in other countries. That represents a loss for everyone who uses Wikipedia and the internet."

Unfortunately, it's difficult to unambiguously prove that this data is being collected — and this means that Wikimedia will have a hard time winning its case. In order for the case to be considered, the plaintiffs will have to prove that they were affected by the NSA's actions. The NSA, however, can argue that plaintiffs can't know if their communications were intercepted in the first place — a stance that has been effective in the past, simply because secret surveillance programs are, by nature, secretive.

For Wales and Tretikov, however, there can be no other option: "Privacy is an essential right. It makes freedom of expression possible, and sustains freedom of inquiry and association. It empowers us to read, write, and communicate in confidence, without fear of persecution. Knowledge flourishes where privacy is protected."

The NSA, however, can argue that plaintiffs can't know if their communications were intercepted in the first place — a stance that has been effective in the past, simply because secret surveillance programs are, by nature, secretive.